Valuing your images and managing copyright and intellectual property

I’ve chosen this image to illustrate the article because although it may have commercial value to say, an old folks’ home, I cannot even let them use it for free because I do not have a consent release from the subjects. Yet it’s fine to use it for editorial – e.g. this article – because there is no commercial value derived, and I’m not promoting, selling or associating with any product. By showing it in more places, I’m also ensuring that more people will automatically be able to attribute the work to me.

“Can I use your image for X? You’ll get credit as the photographer,” is probably something you’ve been asked more than once. How do you respond? How should you respond, from the point of view of something that works for both yourself and preservation of the industry as a whole? How do you ensure that your images are used in a way that you agree with, and with appropriate compensation? Read on. This article will be written mainly for the professional photographer trying to do two things: figure out the value of their images, and then protect it.

Note: intellectual property and copyright law specifics differ from region to region, but this is a general-purpose set of good practice rules that will help you regardless of geography. In any case, many of us may well operate internationally at times. I would recommend that if you have specific questions please seek proper legal advice from an expert.

The idea of exchanging images for visibility/ promotion works only if you assume that a) the images have value to the publisher and b) publishing them in a particular place and being associated with a particular company or entity also holds value for the photographer. Condition a) is almost always fulfilled, but condition b) – seldom. Much as the barriers to entry for image production have dropped, lowering the perceived value of a generic image (because there are simply so many more of them), the barriers to publishing are similarly lowered: there’s no value in being credited for giving away free images to a two bit little website that has no traffic, much less any traffic that might actually hire you to make images for them.

Rule Number One: if whoever is using your image is deriving commercial value from it, you should, too.

Exactly how much that commercial value should be is something only you can decide, but you should take into consideration a few things – rates for the rest of the market for similar work; your client’s budget; how much they’re spending on deploying your images; reach of the images; do they require exclusivity; the amount of time and cost spent producing the images, and only then – whether you’re getting any bonus exposure or not. The answer to the last question is almost inevitably no: photographers are seldom attributed for major campaigns; usually only if the photographer’s brand adds to the campaign (e.g. Testino, Leibowitz) – and never otherwise. This means we default to Rule Number One again.

Rule Number Two: You, and your images, are only worth as much as you think they are.

This means two things: firstly, it is your job as photographer and businessperson to convince your clients of the value of your images – usually by how much value they add to the client’s business, and the level of complexity/ experience required for their production – and secondly, if you undervalue yourself, nobody is going to correct that delta. It would therefore seem much easier to set an arbitrarily high price; that’s not going to work either, because you must remember that the market is fairly transparent and there are more photographers than decent jobs. These forces work themselves into a tenuous self-correcting balance that seems to mostly drive prices slowly downwards.

Although you are the primary arbiter of value of your images, the reality is that if you don’t get any work at that price, you’re going to have to drop to a level where you do once you run out of money. The same is true of every other photographer, and unfortunately, clients seem to know this. We are frequently played off against each other. The only way for the professional photography market not to collapse entirely is for everybody to determine our own value, hold our rates, and not compete with each other on price but on merit only.* There is no formula or logic to determining where this ‘right price’ lies – the price where you can turn away work, but is high enough that you don’t feel like you’re being underpaid. Oh, and don’t forget some strange human psychological traits, too: if something is too cheap it is perceived as having low or no value; if it’s expensive, it must be good. Go figure.

*Yeah, right.

That leads me nicely to Rule Number Three: Don’t win jobs on pricing.

If you are always lowering your rates to win the job, there will come a point where one of two things happen: either, you are working for fee, or you are working 24/7/365, but you cannot physically make enough money to survive because your rates are so low, and there are a fixed number of days in the year.

That brings us to the end of part one. Let us now assume that you manage to sustain work at a reasonable day rate, and like every other photographer who cares about their work, shoot a bit on the side for personal development, experimentation etc. These images may or may not have obvious commercial value.

Your paid client work is licensed to the client, and paid for by the client – both production and license. It should be very clear in your terms of engagement and license agreements – which the client must sign, so there is some legal validity to them – exactly what the terms of engagement are, and the limitations in scope for the license. A good clause to include is always “This license does not take effect until all payment is received in full”. I find that a reminder of this is very useful in speeding up delayed payment, especially if one of their directors has signed off on the terms. It is really your responsibility to ensure that the client adheres to the license, and subsequently enforcing it; to avoid such confusion I usually just grant an unlimited license and price accordingly. This makes sense given that a) usually, the images are so specific nobody else will want to use them anyway, and b) the client is paying for the production. There is also far more money in retaining long term clients than siphoning off a few images for stock and risking their wrath.

That said, what if those images are siphoned off without your permission? That’s a bit different; thought we can ensure that clients do not resell images (another clause: “Rights may not be reassigned, transferred or sold to a third party without express permission and consent from the photographer.”) with appropriate T&Cs, there is not much we can do about image theft. Or is there?

Sadly, it’s become pretty widespread as the number of images available increases, social media, image sharing and search sites become ever more powerful, and people operating on the internet become ever more greedy and unscrupulous. I believe that there are really only three ways to minimise or avoid image theft, and not all of them can always work. The first is obvious: do not upload unlicensed/ ‘clean’ images anywhere. This is fine if you shoot solely for established clients and you don’t need to market yourself, or if you shoot solely for yourself and…don’t need to market yourself. For most working pros and amateurs, this doesn’t apply because it’s simply not feasible.

You could also photograph things so bizarre that they have no immediate obvious commercial value whatsoever; in which case you’re an artist and should exit the commercial world to seek gallery representation. You’ll probably do pretty well there, too.

The last method is the one I use, and effective because it’s somewhat self-policing: make your images extremely visible. The more visible they are, and you are, the more likely your image is going to be attributed to you, and the the more likely somebody who knows you is going to see it and tell you if it’s been used in a suspicious context. I am greatly indebted to the readers and friends who’ve done this for me in the past – you’d be surprised how often it happens. Also, have your own distinct style and never upload anything publicly in full resolution so you have the ability to defend your claim if it comes to it. Nobody is going to claim a Picasso is their work because everybody else will know it’s not, you probably cannot imitate his style well enough to pass, and even if you could, you wouldn’t have the canvas. Bottom line: any would-be thieves move on.

Forget registration of images with a copyright body; it’s expensive, doesn’t at all guarantee enforcement, and frankly, impractical if you shoot with any volume: can you imagine submitting everything you’ve ever shot in a verifiable (i.e. full resolution original) form? It’d take me the better part of a year just to upload my images. And then we’d run the risk again of having one more copy in the public domain that’s outside your control; worse still, at full resolution. Stock libraries and agencies will protect their copyright aggressively if your images are registered with them; however, they will also be the ones shortchanging you. Extreme caution is advised.

Finally, you should always make it clear that the images are ‘all rights reserved’ and ‘copyright X’ – it is clearly marked on Flickr (and you can choose this; I’m not sure about the other image sharing sites); it’s less clear on any other social media. In fact, Facebook, Twitter and Instagram are notorious for subjugation of rights of any image uploaded to their pages: make sure you don’t put anything of value there, and certainly not in full resolution. Even though you can upload full resolution, only a compressed version is displayed to save bandwidth. Ever wonder what happens to the full resolution versions? Think carefully. So, though there is benefit in the visibility of social media, think carefully about what you may be leaving on the table.

This brings me to the final, tricky part: if you’re an amateur – by definition, not making a living from photography regardless of skill level – you should try to play by the same rules as the pros. Value your images. Just because you don’t make a living out of photography doesn’t mean you haven’t invested considerable time and money in learning, shooting and equipment; whoever gets your images for free is getting all of that for free – and deriving benefit for themselves out of it, too. Is that fair? In valuing yourself fairly, you can also help the rest of us to stay in business.

Finally, every photographer – pro or amateur – should be aware of the rules around photographing people. If you do not have a consent release, then you cannot use those images for commercial use; in fact, you can be sued by the subject because you are using their image to represent something which they may not have agreed to. Editorial use is different. This is a very important point to note: just as you expect others to respect your rights, it’s only fair that you respect the rights of others, too. MT

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Comments

Thanks for this excellent article! Many points to consider, and a timely reminder here as I struggle to get an image removed from Instagram that was re-posted without permission (verbatim, no less, right down to the description and hashtags). What a glacially-slow and clunky process that is. And it’s not the first time I’ve found my images being used by others on the ‘net. As an amateur, it would be nice to know what your workflow / software is for placing borders and copyright info. around your photos. It comes across as a great middle-ground solution; no watermark cluttering the photo itself, but the information is still clearly visible. Thanks in advance and for the great blog!

But if possible it would be nice if you could upload your general conditons/license terms of contract what clients have to sign with you before you start working for them…..so that we got a general template/ sample… kind of role model/template with all the fomal stuff (including most important aspects in/having the most security/best solution –> just leave your personal rates and other numbers and stuff out!!!!) so we just have to adopt and put in our own specific seeked rates….i think would be amzaing for all photographers esp. those trying to get into business…. you have a lot of experiences, well-known, wise pro….

If you are hesitating to upload such a “formal (role) model/sample” for everyone maybe you could send it to me at least….–> baskoporsche@freenet.de

One of my images appeared on a magazine cover. I’m an amateur, 100%. Not a pro in the slightest. I received an email from the publisher of a magazine asking for permission to use my image for the cover of their next month’s issue. Having never been published, I said yes. The magazine is non profit but widely read with a circulation of over 15,000 issues per month (at the time). I didn’t ask for any money because all I wanted was one of my photos (with my son in it!) on the cover of a nationally published magazine.

Was I wrong to give away my image? I am pretty certain that the publisher would have moved on had I asked for money.

I would have at least asked what their budget was. The magazine certainly makes money and presumably wouldn’t choose an uninteresting or poor image for the cover; they’re getting benefit whilst in hindsight, I suppose you can probably see you got the short end of the deal?

Actually, I forgot, I got a year’s subscription to this magazine, maybe worth $50 or so. Plus I got to see one of my images on the cover (they gave me 5 copies) and to make it better, it’s a photo of my son (studying hard in the library). I think I came our real well.

This was timely as I had just received a message from a fellow pro photographer via my Facebook page asking if I’d read the recent revision in Facebook’s subjugation of images and I have not, so thought I’d start doing some research. I haven’t uploaded anything beyond 50% scale and compressed jpg onto social media sites for years, but it’s still something I like to keep tabs on what Facebook and Google feel is their right regarding my images. I don’t even place full sized images on my Flickr, Smugmug, Pixels, or 500px galleries, and now I’m thinking that my future FB or Google posts should simply be a link to the image(s) on one of those more protection-friendly galleries. Does any of that gel with your web publishing criteria, Ming?

I believe Cartier-Breson worked incognito and produced 1000s of works that clearly identify individuals in his images. Did he get a single model release? Would he have continued in photography if he had to do so?

In some regions like in the US there seems to be a different treatment of the privacy restriction for images taken in public spaces vs private spaces. My understanding, which may be incorrect, is that as long as the work is taken in a public space and it is used for “artistic” purposes then a model release may not be required. Of course this still leaves us worried about the many gray areas between artistic and commercial use…

Without research, I immediately suppose that the images you refer were used for editorial and ‘artistic’ purposes as you say rather than commercial such as an Cartier-Breson advert for Pepsi.

I agree with you about the gray areas. In fact my personal thought at this moment is that the grey regions are too vast; nearly or completely impractically vast for a practitioner who is making a good faith effort to comply with the framework. It’s as if legislation enacted in various locales has knowingly been drafted to give rise to an unmanageable lack of clarity and leaving us subject to wander about in the fog and hope that those who enforce the regulations will subjectively agree with us on the day we happen to meet them. If I display my artistic work is that a commercial use as an advert for myself as a photographer or for my studio?… and that only is a single question with barely a scratch on the surface.

Editorial or not, the work will always be associated with a single photographer/ producer – is that endorsement? Hard to say. I suppose one could argue that the ambiguity gives us room to maneuver, and that nobody would really be doing their own business any favors with poor images…

Sounds like they are busting photographers on the spot. We had something like that here in Texas for a while, but the courts invalidated it. Some folks are freaked out at the ease with which a photograph may be captured and published.

Regarding street, specifically, I recall it having been suggested that people in public places should dress and behave well in the first place ~ and as a consequence they shouldn’t feel concerns about being photographed.

Today I believe such a notion could be improved upon by integrating awareness that images have in them a potential capacity, which is realized in some instances, to dramatically magnify the impact of a given moment. For example 1/500th of 1 second might be preserved for decades. On a crowded street such a 1/500th second might be observed by ten people or twenty persons but when published could be seen by millions.

The subject of an image may have no intention whatsoever to place themselves on public display (or to gain notoriety therefrom). In fact the circumstances of a situation may have rendered a subject’s presence in a public place partially or almost entirely unavoidable. Standing in line to enter a medico’s office; waiting on library steps for an acquaintance; or perhaps I’m having a beer with friends at a sidewalk restaurant (which was really meant for those five people — not for millions to view). In most cases there was certainly no intention to be photographed.

Then in the instant of being photographed, the subject has no idea of the intentions of the photographer. Will my image be used in a publication seen by large numbers of people (and what publication, by the way?), will it go into someone’s personal collection, or is there some other unspecified and unknown purpose for the photograph?

Since there is no relationship with the photographer, a subject might in some instances sense that some degree of objectification is taking place; one’s personal appearance is being used for another person’s purposes.

One or more of the foregoing concerns may be joined by a subject’s awareness that he or she is imperfect e.g. as everyone else. (Is there mustard on my chin? Do I want the mustard on my chin to be preserved in a visual record for decades??)

There’s also a limitation on time, which would long have expired by now. To my knowledge none of his images were ever used for commercial promotion though. Editorial use is generally OK in most countries.

And value can change as well. A photograph by a person can go up in value when that person becomes the next Damien Hirst. Don Thompson has made the point concerning art about differential prices in auctions as opposed to galleries. Equivalent works tend to be more highly priced in auctions than in galleries. So to some extent, value (or prices, though they’re not always the same thing) is arbitrary.

Hi Ming; I’m long-time lurker here, follower of your advice (I discovered you while researching my now-treasured EM1) and purchaser of your most of your teaching videos, but this is my first post.

In your discussion of the commercial use of images for which one does not have a consent release, you stated; “Yet it’s fine to use it for editorial – e.g. this article – because there is no commercial value derived, and I’m not promoting, selling or associating with any product.”

Playing devil’s advocate here, are you not promoting yourself and your brand? It it not an example of the output you (can) produce? As you often say, photographers are judged on what they show, not what they shoot, ergo one must assume that any image you post IS representative of your capabilities. What if the owner of a nursing home saw your photo and as a result, commissioned you to take photos for their own promotional material (as an example?). Is there then not a derived commercial value?

What if one was to use candid street portraits as examples of one’s work (but not offer them for sale) alongside other curated paying-client images (with a release), on a website which advertised one’s services as a photographer?

It’s a thin grey area. You obviously wouldn’t want to be associated with any bad or aesthetically ugly work, which tends to also work in favor of flattering the subject. However, there’s also no way to separate the photographer from the work unless it is completely anonymously published.

Thanks for the coverage on this important topic, which is often on my mind. Most of my street photography avoids facial recognition and focuses on anonymity. One cannot always approach someone for permission or release. It’s a tough call and one that I ponder, because street photography is one of the most intriguing and inspiring genres of photography. Recently, I went through a series of negotiations for an image that authors wanted to use in a publication for release next year. While the fee was smaller than I should have received, I asked and will get a copy of the book. Placing a value on one’s work is terribly difficult. Do you turn down an opportunity, because the fee is not equal to the subjective value of a work? Thanks for this article and your suggestions.

” The only way for the professional photography market not to collapse entirely is for everybody to determine our own value, hold our rates, and not compete with each other on price but on merit only.* There is no formula or logic to determining where this ‘right price’ lies – the price where you can turn away work, but is high enough that you don’t feel like you’re being underpaid. ”
Are you encouraging cartels Ming? Surely the price should be determined by the hourly rate the photographer wishes to pay themself, plus the length of time taken to produce the goods? Thus an efficient photographer working from a low-cost part of the world will always be cheapest, and anyone in a high-cost part of the world is destined to go out of business eventually, unless they collude with others in their area?

“Surely the price should be determined by the hourly rate the photographer wishes to pay themself, plus the length of time taken to produce the goods?” Sorry, not so, much as many would wish otherwise; that’s a restatement of the discredited labor theory of value of Karl Marx. Actually, value is subjective, and entirely determined by what someone willingly will pay. Labor expended and cost of equipment and materials does not determine what people are willing to pay.

Yes and no. This isn’t true when there’s a big mismatch between the two. You’re not going to do the work if somebody isn’t going to pay you somewhere within shouting distance of your expectations, photography or otherwise.

So often I see that exact same argument. I’ll come out and say that I am for photographers sharing information. Many years ago one of the professional photography organizations got sued by a group of large ad agencies, with the idea that they were working together to enact price fixing. The photographer’s organization, not having full time attorneys and deep pockets of money, were unable to prevail against the well funded ad agencies.

Nearly every place I have been in the world, groups of plumbers, electricians, mechanics, architects, attorneys, doctor, et al, have charged incredibly similar rates for their professions. There are even rate guidebooks for many of these professions. The rates are based upon knowledge and experience, and not time spent performing a task. In some of the rate structures, the value to the customer determines the rates. If all these other professions are not cartels, then photographers sharing information does not constitute a cartel.

So why are photographers, and other creative professionals, basked about what they want to charge? Why are creative professionals restricted from sharing knowledge to ensure that what they charge creates a sustainable wage level, and supports a viable profession? The answer has much to do with collective coercion by those who need the talents of creative professionals. Why shouldn’t creative professionals determine fees and rates in manners that nearly every other profession uses? Luckily some information is being shared, and sustainable practices are being slowly established. Those companies who need creative services benefit by having skilled and knowledgeable professionals available to produce the ideas and output needed to promote the goods and services of companies.

Simple: how do you determine ‘better’? How do you even assess it? A tradesperson does a job or they don’t do it; your sink still leaks or it doesn’t. Architects and attorneys are closest to photographers in that there isn’t so much a binary outcome. It’s all subjective…

Some in public view photographers as simply camera operators, not much different from someone who drives a forklift. I still get a few requests along this line each year, with the main concern being what equipment I would bring to a location; it’s completely the wrong approach, so I usually suggest they contact a camera rental company, and that they try doing the project themselves.

Determining “better” is something I think has become muddied by the overwhelming viewer saturation of mediocre images shared across so many platforms. There is a bit of a leap of faith with clients in choosing any creative professional. Often it can come down to personality, and a willingness to want to work with someone on a creative project. Even then, there may still be some level of not understanding the creative process.

Part of this is education of clients, which we speak of often. That’s not to validate what we do, though it does enable more understanding of how we do what we do. As I state often, we don’t bring cameras to projects, we bring ideas.

Well, we try – but a lot of clients as you say still view us as operators. This is especially true in Asia, sadly. There is only so much education and turning down jobs you can do before you have to start taking them to pay the bills…

Many thanks for this! I shoot street photography so I suppose the images can’t really be used commercially to endorse anything… but I’ve given permission recently to a few places to use my Occupy Central images. All for a good cause, I suppose…

**This brings me to the final, tricky part: if you’re an amateur – by definition, not making a living from photography regardless of skill level – you should try to play by the same rules as the pros. Value your images. Just because you don’t make a living out of photography doesn’t mean you haven’t invested considerable time and money in learning, shooting and equipment; whoever gets your images for free is getting all of that for free – and deriving benefit for themselves out of it, too. Is that fair? In valuing yourself fairly, you can also help the rest of us to stay in business.**

I do not have any thoughts about this would ever be relevant to me, but who knows what the future will bring? You have a point Ming and it should be concidered a serious one. Thanks for bringing it up in this well written and most ineresting and insightful article.